Saturday, March 26, 2016

Probate Judges Urged to Use Mediation More Often in Emotionally Charged Cases

Probate court cases are often emotionally charged, with family members arguing about such topics as the terms of a will or how to best handle an elderly parent's care.

While probate court judges routinely hold hearings and issue decisions, probate courts also offer mediation, a chance for the parties to resolve their disputes amicably and in a less formal setting. The state's probate court leadership is pushing for more cases to be resolved this way.

As part of this push, on March 9 the Quinnipiac University School of Law's Center for Dispute Resolution hosted about 60 probate judges from around the state for a daylong training session in mediation. The probate courts approached Quinnipiac about doing a custom program for the judges, and Quinnipiac did the program for free.

Probate Court Administrator Paul Knierim said mediation is a "perfect fit" for probate cases. "I say that because almost all probate cases are filled with emotion," Knierim said. "The techniques used in mediation help parties better come to terms with those emotions and understand each other better while working toward a settlement."

The mediation program has been in place for several years, but there aren't any statistics for how often it is used. However, there is a system in place allowing parties to pick a mediator from a panel of probate judges and retired judges. The overall goal, according to Knierim, is to have more cases get resolved through mediation.

"My hope is that the exposure of all of our judges to this training will keep it at the top of their minds, and will result in judges discussing the topic of mediation more frequently with parties," Knierim said. "Sometimes it takes encouragement from judges before people who are at odds will think about working toward a settlement."

Mediation provides a neutral third party to facilitate negotiations and get the parties thinking about solutions that will please everyone, said Carolyn Wilks Kaas, an associate professor of law at Quinnipiac and co-director of the school's dispute resolution center.

"The mediator is trained to run the process so people can express what brought them into this conflict," Kaas said. "With probate court, it is almost always families. It could be a case where the mother has Alzheimer's disease, but the children have different ideas about how to help her. Through mediation, people can sit and talk and more creatively come up with a solution, like taking turns caring for their mother. The mediator doesn't decide the case, they help the parties decide their own case."

In the probate system, a mediator can be any judge other than the one normally assigned to the case. If the mediator is unable to help the parties reach a settlement, the case goes back to the presiding judge for a decision. The push to have more cases resolved through mediation could mean more work for retired judges, according to Knierim.

The probate courts' rules on mediation also were updated in recent months with the goal of increasing its use, Knierim said. The maximum daily mediation fee was set at $350, for example.

Probate courts often handle cases such as contested wills, disputes in the settlement of estates, hospitalization of people with psychiatric issues and guardianships of children if a parent can't care for a child due to substance abuse or incarceration.

"You are dealing with family dynamics and emotional situations all the time in probate court," Knierim said. "Most of our cases involve disputes among family members. It is better if they can find a way through mediation to come to their own agreement rather than fight it out and have a judge decide it for them."

When families choose mediation, they have a better chance of coming out of their dispute with relationships intact, according to Knierim. "A settlement which family members agree on themselves is far more promising for the long-term health of family relationships than a litigated outcome," Knierim said.

Knierim would like to have events like the one at Quinnipiac on a regular basis, approximately once every couple of years. The March training included discussion of mediation essentials, including what approaches work best and how to handle difficult parties or attorneys. There was also a simulated mediation involving a will being disputed by stepsiblings.

Kaas, the Quinnipiac associate professor, asserted that mediation isn't used enough in the probate courts now. Echoing Knierim, she said: "At the core of so many probate disputes are family matters. Mediation helps preserve ongoing relationships. Sometimes mediation can have the therapeutic result of mending fences. It is definitely something that should be used more."

Kaas said she hopes the training event provides a foundation for future sessions and more advanced training. "While all the judges have settlement experience, not all have mediation training," Kaas said. "Mediation is different, and the courts wanted to improve the training of all judges. I know the probate court is trying to increase the use of mediation."

Meriden probate judge Brian Mahon, who attended the training, said while the courts have had a mediation program, it hasn't been used much. Typically, probate judges have suggested it for the more difficult cases, he said. "It has not been used extensively, and it is hoped that in the future, we could use it more," Mahon said. "The seminar was to give us really good training in techniques and methods to use." •

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Probate Judges Urged to Use Mediation More Often in Emotionally Charged Cases

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